I.2.01 Since the early 1970's, the Canadian Medical Association (CMA) has
struggled repeatedly to resolve conflicts within the medical profession
created by legalization of abortion. A prime source of conflict has been a
continuing demand that objecting physicians be forced to provide or
facilitate the procedure by referral. An early experiment with mandatory
referral by objecting physicians was abandoned after a year because there
was no ethical consensus to support it; there is no evidence that the policy
was ever enforced.1

I.2.02 A difficult compromise has emerged. Physicians are required to
disclose personal moral convictions that might prevent them from
recommending a procedure to patients, but are not required to refer the
patient or otherwise facilitate abortion. The arrangement preserves the
integrity of physicians who do not want to be involved with abortion, while
making patients aware of the position of their physicians so that they can
seek assistance elsewhere. The compromise has been used as a model for
dealing with other morally contested procedures, like contraception.

I.3.01 Nonetheless, some activists, influential academics, powerful
interests, state institutions and professional organizations have been
working steadily to overthrow the compromise and compel objecting physicians
and other health care workers to provide, participate in or facilitate
abortion, contraception and related procedures. This was attempted, for
example, in a guest 2006 editorial in the Canadian Medical Association
Journal (CMAJ) by Professors Sanda Rodgers and Jocelyn Downie.2 The editorial
elicited a flood of protest. Dr. Jeff Blackmer, CMA Director of Ethics,
reaffirmed Association policy that referral was not required,3 and the CMAJ
declared the subject closed. The negative response caused Professor Downie
to redirect her efforts to convince provincial regulatory authorities to
adopt coercive policies.4

I.4.01 In 2008, two years after Professor Downie's tendentious CMAJ
editorial, the Ontario Human Rights Commission (OHRC) attempted to suppress
freedom of conscience in the medical profession in Ontario through the
College of Physicians and Surgeons of Ontario (CPSO).5 The key issue was made
clear by a succinct statement in the OHRC's August submission:

It is the Commission's position that doctors, as
providers of services that are not religious in nature, must essentially
"check their personal views at the door" in providing medical care.6

I.4.02 The CPSO prepared a new policy, Physicians and the Human Rights
Code, the draft text of which clearly reflected the influence of the OHRC.
It stated that "there may be times when it may be necessary for physicians
to set aside their personal beliefs," and implied that those who failed to
do so faced prosecution for professional misconduct or human rights
offences.7

I.4.03 A controversy erupted when news of the draft policy became public.8
The 25,000 member Ontario Medical Association asked that it be withdrawn,
stating, "We believe that it should never be professional misconduct for an
Ontarian physician to act in accordance with his or her religious or moral
beliefs."9

I.4.04 The public outcry made it necessary for the President of the
College to issue a statement that "the College does not expect physicians to
provide medical services that are against their moral or religious beliefs."10
An e-mail to physicians repeated this assurance and drew specific attention
to concerns raised among respondents to a purported obligation to assist
patients in obtaining morally controversial services.11 Thus, the CPSO
President effectively confirmed that the focus of the proposed policy
reflected the long-standing activist determination to force physicians to
facilitate contraception, abortion and related procedures, even at the cost
of violating their religious or moral convictions.

I.4.05 As a result of the controversy, the College delayed consideration
of Physicians and the Ontario Human Rights Code and made some revisions to
it. However, it kept the revisions secret until the day the document was
considered by the College Council, thus preventing comment on it by the
public and medical professionals prior to its approval.12 The revisions
deleted the most objectionable language in the policy, which has been in
effect since that time.
13

I.4.06 The OHRC does not appear to have
retreated from its position of marked hostility to freedom of conscience in
the medical profession, as its submissions remain on its website without
comment or qualification and continue to influence public opinion (I.7.07).14

I.5.01 Since 2008 there have been further developments. Professor Downie
was a member of the "expert panel" of the Royal Society of Canada that, in
2011, recommended legalization of euthanasia and assisted suicide. The panel
conceded that health care workers might, for reasons of conscience or
religion, object to killing patients or helping them kill themselves.
Professor Downie and her expert colleagues recommended that such objectors
should be compelled to refer patients to someone who would do so.15 They
claimed that this was consistent with "[t]oday's procedural solution to this
problem. . . in Canada as well as many other jurisdictions" with respect to
conscientious objection to abortion and contraception ("certain reproductive
health services"). Objecting physicians, they declared, are required "to
refer assistance seekers to colleagues who are prepared to oblige them."16

I.5.02 It is not surprising that the authors did not cite a reference to
support this assertion. In Canada, outside of Quebec,
there is, in fact, no policy that objecting health care professionals should
be compelled to refer for abortions or other morally contested procedures.
Given the repudiation of her views by the CMA in 2006 and the very public
2008 brouhaha about Physicians and the Ontario Human Rights Code, Professor
Downie must have been aware of that. Moreover, although compulsory referral
policies can be found in some jurisdictions, they continue to be sharply
contested. In the state of Victoria in Australia, for example, a
physician made public the fact that he refused to refer a woman for a sex
selective abortion, challenging the state and professional regulator to
charge him for breaking the abortion law or professional misconduct. He was
not charged. 17

I.6.01 In June, 2014, the Quebec National Assembly passed An Act
Respecting End of Life Care (ARELC), which purports to legalize euthanasia
by physicians.18 A physician who does what the Act requires in killing a
patient will have provided excellent evidence that the killing was
intentional, planned and deliberate: first degree murder. It remains to be
seen how this constitutional conflict between provincial and federal law
will be resolved. Meanwhile, the medical and legal establishment in Quebec
is proceeding to implement the law.

I.6.02 As noted previously, Quebec is the only province in Canada in
which a regulatory authority requires that physicians who are unwilling to
provide a service for reasons of conscience "offer to help the patient find
another physician."19 The gloss provided by the Collège mentions abortion and
contraception and emphasizes an expectation of active assistance by the
objecting physician to locate, not just another physician, but the services
themselves.20

I.6.03 During hearings into the bill it was obvious that this provision
was understood to require physicians who will not kill a patient to find
someone who will. The Quebec Association of Health Facilities and Social
Services cited it to underscore its insistence that physicians who refuse to
provide euthanasia for reasons of conscience must not be relieved of the
responsibility to find a willing colleague.21

I.6.04 Professor Jocelyn Downie spoke in favour of the law at legislative
hearings in the fall of 2013, but did not address the subject of
conscientious objection to euthanasia.22 However, she and colleagues have
drafted a Model Conscientious Objection Policy for Canadian Colleges of
Physicians and Surgeons. Should euthanasia be allowed, Professor Downie's
model policy would codify a requirement that a physicians unwilling to kill
patients themselves for reasons of conscience must "must make a referral to
another health care provider who is willing and able to accept the patient
and provide the service."23

I.7.01 A 25 year old woman could not obtain a prescription for
contraceptives at an Ottawa clinic because the physician did not prescribe
them for reasons of "medical judgment as well as professional ethical
concerns and religious values;" he offered Natural Family Planning (NFP)
instead. In accordance with CMA and CPSO guidelines, the woman was advised
that she could see another physician if she wanted contraception.

I.7.02 The young woman drove around the block and obtained the
prescription at another clinic.25 This was not surprising, since birth control
services are "widely available" in Ottawa from Ottawa Public Health's Sexual
Health Centre, family doctors and drop-in services at more than 20 satellite
locations. Responding to a report of incident, the Medical Officer of Health
and the President of the Academy of Medicine of Ottawa urged people to
"emphasize and celebrate" the wide availability of birth control services,
the morning after pill, referrals for abortion, and vasectomies.26

I.7.03 The physician in question was not forced to do something contrary
to his medical judgement and religious beliefs, and the young woman obtained
birth control pills by driving around the block. In more tolerant times and
places this might have been considered a successful compromise.

I.7.04 However, in Ottawa in 2014, that three out of 3,924 area
physicians27 did not prescribe The Pill made headlines.28 A Facebook crusade was
launched against the physician and two other NFP-only physicians who decline
to prescribe contraceptives. Outraged Facebookers called the physician a
"jerk,"29 a "complete anachronism,"30 "disgusting,"31 incompetent,32 "unethical and
unprofessional,"33 a "worthless piece of ____,"34 a "crummy doctor,"35 "an
idiot,"36 and judged him to be -
judgemental.37

Goofballs like this are the best walking arguments for
the birth control they don't believe in.38

He should move to the states, or maybe Dubai, where he
will be among his own kind.39

I.7.05 One of the Facebookers made a fairly obvious suggestion that women
should go to the clinic and make gratuitous requests for birth control
pills, knowing they will be refused, for the sole purpose of fabricating
complaints against the physician to the College of Physicians and Surgeons
and Ontario Human Rights Commission.40

I.7.06 Other Facebookers urged that formal complaints be lodged. "The
only sane solution is to revoke his licence unless he agrees to perform the
duties for which he is being paid,"41 because he had chosen "the wrong damned
profession,"42 he had "no business practicing [sic] family medicine"43 and "does
not deserve to practice in Canada. PERIOD."44 A number suggested that the
physician was guilty of professional misconduct and even unlawful
discrimination.45 "If this guy is still employed, and complaints aren't
filed against him," wrote one, "then mission failed."46

I.7.07 The 'pro-choice' group assured their correspondent that they had
received "lots of word" that people were calling the physician's clinic, the
College of Physicians and Surgeons, and the Ontario Human Rights Commission.47
The crusaders posted a link to the OHRC's February, 2008 submission to the
CPSO, the document that led the College to produce Physicians and the Human
Rights Code.48

I.7.08 In short, it was front page news and a public scandal that three
Ottawa physicians had told their patients that they would not recommend,
facilitate or do what they believed to be immoral, unethical, or harmful.
Consulted by the Ottawa Citizen columnist, officials from the CMA and the
CPSO seemed unsure about whether or not there is room for that kind of
integrity in the medical profession.49 A few days later, a reporter with the
Medical Post expressed doubt that it was even legal.50

I.7.09 As the deadline for submissions on Physicians and the Ontario
Human Rights Code approached, a Toronto Star columnist referred once more to
the Ottawa case. "If a doctor is so antediluvian as to be
anti-contraception," he wrote, "he'd best transition from medical to
pastoral work. Playing God isn't in the job description of physicians."

Doctors don't deserve special dispensation to
discriminate, any more than a pharmacist who refused to fill a prescription
for birth control pills. That's why the College of Physicians and Surgeons
must safeguard the public interest this time, not acquiesce yet again to
vested interests at the OMA as in 2008.51

I.7.10 It appears that the overwhelming majority of OMA
members prescribe contraceptives, so that they can hardly be said to have a
"vested interest"in supporting opposition to the practice. It is true,
however, that, like all Canadians, they have a vested interest in
safeguarding freedom of conscience and religion. Moreover, they may be more
acutely aware of the consequences of its suppression. After all, if
euthanasia were to be legalized, physicians - not newspaper columnists -
will be asked to do the killing.

II.1 As the Toronto columnist demonstrates, the issue has not changed
since it was articulated by the OHRC in 2008. Should Physicians and the
Ontario Human Rights Code be revised to demand that physicians set aside
their religious, moral or ethical convictions and impose on them a duty to
do what they believe to be wrong?

III.1 A response to the issue requires the application of principles, the
significance of which is affected by the social context within which the policy
is to operate.

III.2 Two factors contribute significantly to the social context that
must be considered if Physicians and the Ontario Human Rights Code is to be
revised: anti-religious secularism and the connection between the
"reproductive rights" agenda and euthanasia/assisted suicide.

III.3.01 What generated the most frequent and heated anathemas in the
crusade against the Ottawa physicians was that they were motivated, in part,
by "religious values." The crusaders' opinions and beliefs
seem to have been shaped from infancy by secularism.52 Thus, they were infuriated by a
refusal based on religious beliefs. That was heresy against the faith in
which they had been raised, the response to which was obvious to them;
extirpate the heretics: "NO MORE
CHRISTIAN DOCTORS."53

III.3.02 That explains why their response was not unlike the witch-hunt
whipped up in Montreal after two daycare workers were seen wearing niqabs in
a public place on an outing with the children in their care.54 It was a wildly
disproportionate reaction to news that 0.08% of Ottawa area physicians do
not prescribe or refer for contraceptives or abortion (both widely available
without referral), or that a young woman had to drive around the block to
get birth control pills.

III.3.03 It is important that the College should not inadvertently inflame anti-religious sentiments and bigotry or
contribute to a climate of intolerance by ill-advised revisions of Physicians and the Ontario Human Rights
Code. It should, instead, encourage a
rational pluralism respectful of our fundamental freedoms that adequately
accommodates the practical living out of divergent non-religious and
religious beliefs. Thus, the plan for careful and extended
consultation is welcome.

III.4.01 The arguments now said to justify compelling objecting
physicians to provide or refer for abortion and contraception are the same
arguments put forward to compel objecting physicians to provide or
facilitate euthanasia and assisted suicide. As illustrated by developments
in Quebec, compulsion in the former case will inevitably lead to compulsion
in the latter.

III.4.02 When laws governing abortion and contraception became less
restrictive almost fifty years ago, the kind of attacks now being made on
physicians and other health care workers who decline to provide or
facilitate the services was beyond imagining. No one would then have
anticipated that the more liberal society they thought they were building
would generate the vituperative intolerance now evident in Ontario.

III.4.03 However, if current atmosphere and trends persist, it is
not now beyond imagining that a columnist will eventually proclaim that
physicians who are "so antediluvian as to be anti-euthanasia" had better
find another job. That is not the approach to rational pluralism or medical
ethics one would hope to find in a liberal democracy, and Physicians and
the Ontario Human Rights Code should avoid encouraging attitudes that would contribute to
such an outcome.

IV.1 Physicians and the Ontario Human Rights Code (POHRC)55 is divided into
two sections. The first concerns the obligation of physicians to avoid
unjust discrimination. The second concerns the obligation of physicians to
accommodate people with disabilities who are or who wish to become patients.
Only the first section is relevant here.

IV.2 The first part of the document is further subdivided into discussion
of clinical competence and discussion of moral or religious beliefs. This
submission concerns the discussion of physician freedom of conscience and
religion included in the latter subdivision, which concludes with four
expectations of physicians who act on moral or religious beliefs in their
practices.

IV.3 The guidance concerning moral or religious beliefs is presumably the
basis for the four College expectations and will be addressed in this
submission. It is important, because the document states that "the extent to
which a physician has complied with this guidance" will be considered by the
College "when evaluating whether the physician's behaviour constitutes
professional misconduct."56

IV.4 The Project submission concerning POHRC reflects seven principles
that ought to inform a policy on freedom of conscience in health care. They
are not exhaustive, but are relevant to POHRC because of its history and the
current social context. The principles will be stated and briefly explained
before being applied in an analysis of the document. The submission will
conclude by summarizing recommendations based upon the principles and the critique of
the policy.

IV.5 The Project's 2008 submission concerning POHRC addressed
a number of other issues that will not be reviewed here, such as the needs
of the patient or obligations allegedly implied by social contract theory or
fiduciary duty. The submission can be consulted on-line.57

V.1.01 The practice of medicine is an inescapably moral enterprise
precisely because physicians are always seeking to do some kind of good and
avoid some kind of evil for their patients.58 However, the moral aspect of
practice as it relates to the conduct and moral responsibility of a
physician is usually implicit, not explicit. It is normally eclipsed by the
needs of the patient and exigencies of practice. But it is never absent;
every decision concerning treatment is a moral decision, whether or not the
physician specifically adverts to that fact.

V.1.02 This point is frequently overlooked when a physician, for reasons
of conscience, declines to participate in or provide a service or procedure
that is routinely provided by his colleagues. They may be disturbed because
they assume that, in making a moral decision about treatment, he has done
something unusual, even improper. Seeing nothing wrong with the procedure,
they see no moral judgement involved in providing it. In their view, the
objector has brought morality into a situation where it doesn't belong, and,
worse, it is his morality.

V.1.03 In point of fact, the moral issue was there all along, but they
didn't notice it because they have been unreflectively doing what they were
taught to do in medical school and residency, and what society expects them
to do. Nonetheless, in deciding to provide the procedure they also
implicitly concede its goodness; they would not provide it if they did not
think it was a good thing to do. What unsettles them is really not that the
objector has taken a moral position on the issue, but that he has made an
explicit moral judgement that differs from their implicit one.

V.1.04 Hence, the demand that physicians must not be allowed to act upon
beliefs is unacceptable because it is impossible; one cannot act morally
without reference to beliefs, and cannot practise medicine without reference
to beliefs. Relevant here is a comment by Professor Margaret Somerville. "In
ethics," she writes,"impossible goals are not neutral; they cause harm."59

V.2.01 Consistent with the practice of medicine understood as a
moral enterprise, a physician first considers the well-being of the patient.60 What
constitutes or contributes to the "well-being" of a patient is largely
determined by a competent patient, not by a physician, though a physician
may well contribute to the patient's decision. However, it does not follow
that a physician is always obliged to agree with the patient's decision or
to give effect to it. What happens in the case of such disagreements is
largely dependent upon patient and physician concerned and their respective
evaluations of what is at stake. More relevant here is the obligation of the
physician to offer the patient his best medical judgement about a
recommended course of treatment or action, and, in so doing, select
treatments that avoid or minimize health risks or adverse side effects.

V.2.02 Sound medical judgement begins with and remains focussed on the
patient and is exercised respectfully. It must be informed by correct
science, avoiding or minimizing foreseeable risks or harm. It must seek a
reasonably effective response to the needs of the patient, the anticipated
benefits of which outweigh potential risks or harms. Medical judgement
requires the reasonable exercise of discretion, which is shaped and refined
by clinical wisdom born of experience. More could be added, but these
elements are essential.

V.2.03 Physicians are expected to provide patients with accurate
information about all legal options available to them, the effectiveness of
the methods, adverse effects or risks associated with each, benefits
associated with each, and other information that someone in the position of
a patient would reasonably want to know. In some cases the physician might
have to provide a great deal of information; in others, it may simply be a
matter of filling in some gaps in what the patient knows.61 In all cases, the
physician must take care to present the information in a form comprehensible
to the patient.62

V.2.04 The physician must disclose whether or not he has religious,
ethical or other conscientious convictions that generally preclude him from
providing some services or treatments, even if medical judgement is central
to his practice.63 The reason for this is that the patient is entitled to be
apprised of non-medical factors that may influence a physician's medical
judgement and recommendations. The patient is also entitled to know whether
or not the physician's medical evaluation of the treatment in question is
consistent with the general view of the medical profession.64

V.2.05 The physician should invite questions from the patient at
different stages in the consultation to ensure that he has been correctly
understood.65 The goal is to ensure that the patient has sufficient
information and understanding to make an informed decision about what kind
of treatment she will accept. With respect to any reference to his
conscientious convictions, unless the patient questions him, asks for
further explanation, or otherwise indicates that she does not understand his
position, the physician need not and probably should not expand upon the
basis for his own position. To do so would likely invite the accusation that
he is "preaching."66

V.3.01 All public behaviour - how one treats other people, how one treats
animals, how one treats the environment - is determined by what one
believes. All beliefs influence public behaviour. Some of these beliefs are
religious, some not, but all are beliefs. This applies no less to "secular"
ethics than to religious ethics. A secular ethic may be independent of
religion,67 but it is not faith-free, nor is it beyond the influence of faith.
On the contrary: a secular ethic, like any ethic, is faith-based. That human
dignity exists - or that it does not - or that human life is worthy of
unconditional reverence - or merely conditional respect - and notions of
beneficence, justice and equality are not the product of scientific enquiry,
but rest upon faith: upon beliefs about human nature, the meaning and
purpose of life, the existence of good and evil.

V.3.02 That everyone is a believer reflects the fact that the practice of
morality is a human enterprise,68 but it is not a scientific enterprise. The
classic ethical question, "How ought I to live?" is not a scientific
question and cannot be answered by any of the disciplines of natural
science, though natural science can provide raw material needed for adequate
answers.

V.3.03 Answers to the question, "How ought I to live?" reflect two
fundamental moral norms; do good, avoid evil. These basics have
traditionally been undisputed; the disputes begin with identifying or
defining good and evil and what constitutes "doing" and "avoiding." Such
explorations are the province of philosophy, ethics, theology and religion.
Internationally, religion continues to be the principal means by which
concepts of good and evil and right and wrong conduct are sustained and
transmitted.

V.3.04 Nonetheless, since the practice of morality is a human enterprise,
reflections about morality and the development and transmission of ideas
about right and wrong also occurs within culture and society outside the
framework of identifiable academic disciplines and religions. In
consequence, the secular public square is populated by people with any
number of moral viewpoints, some religious, some not: some tied to
particular philosophical or ethical systems, some not: but all of them
believers. There is no reason to deny the freedom to act upon religious
belief because it is religious: no reason, that is, apart from
anti-religious bigotry.

V4.01 It is for this reason that the Supreme Court of Canada has
recognized that, in Canadian law, "secular" must be understood to include
religious belief. In his paper, Seeing Through the Secular Illusion,69 Dr.
Iain Benson emphasizes this by referring to an explanation supported by the
full bench of the Court:

In my view, Saunders J. below erred in her assumption
that 'secular' effectively meant 'non-religious'. This is incorrect since
nothing in the Charter, political or democratic theory, or a proper
understanding of pluralism demands that atheistically based moral positions
trump religiously based moral positions on matters of public policy. I note
that the preamble to the Charter itself establishes that '... Canada is
founded upon principles that recognize the supremacy of God and the rule of
law'. According to the reasoning espoused by Saunders J., if one's moral
view manifests from a religiously grounded faith, it is not to be heard in
the public square, but if it does not, then it is publicly acceptable. The
problem with this approach is that everyone has 'belief' or 'faith' in
something, be it atheistic, agnostic or religious. To construe the 'secular'
as the realm of the 'unbelief' is therefore erroneous. Given this, why,
then, should the religiously informed conscience be placed at a public
disadvantage or disqualification? To do so would be to distort liberal
principles in an illiberal fashion and would provide only a feeble notion of
pluralism. The key is that people will disagree about important issues, and
such disagreement, where it does not imperil community living, must be
capable of being accommodated at the core of a modern pluralism.70

V.4.02 Thus, the Supreme Court of Canada has acknowledged that
secularists, atheists and agnostics are believers, no less than Christians,
Muslims, Jews and persons of other faiths. Neither a secular state nor a
secular health care system (tax-paid or not) must be purged of the
expression of religious belief. Whether or not they are state employees in
law or as a matter of public policy, physicians may act upon religious
beliefs when practising medicine. The Court has
insisted that rational democratic pluralism must make room for all of
them.

V.4.03 This undercuts the reasoning offered by the OHRC in 2008 for its
attempt to suppress freedom of conscience and religion in the medical
profession. The Commission, having identified physicians as "providers of
secular public services"( emphasis added),71 erroneously presumed that what is
"secular" excludes religious belief. In its public perpetuation of this
error, the OHRC has contributed significantly to anti-religious sentiments
and a climate of religious intolerance in Ontario.

V.4.04 Further, the approach taken by the Supreme Court of Canada on
this issue contradicts the position taken by the OHRC with respect to the
Ontario Human Rights Code. The OHRC advised the College that "'moral
beliefs,' per se, are not protected. . .whereas religious beliefs and
practices are protected under the ground of 'creed.'"72 The reasoning of the
OHRC would have the effect of placing atheists and agnostics "at a public
disadvantage or disqualification" vis-à-vis religious believers, surely not
an outcome consistent with the thinking of the Supreme Court.

V.5.01 Making room in the public square for people motivated by different
and sometimes opposing beliefs can lead to conflict, as the present
consultation demonstrates. The Supreme Court of Canada has warned that to
single out and exclude religious belief in order to prevent or minimize such
conflict would "distort liberal principles in an illiberal fashion."73

V.5.02 It is also dangerous. It overlooks the possibility that some
secularists - like some religious believers - can be uncritical and narrowly
dogmatic in the development of their ethical thinking, and intolerant of
anyone who disagrees with them. They might see them as heretics who must be
driven from the professions, from the public square, perhaps from the
country: sent to live across the sea with their "own kind." University
of Victoria law professor Mary Anne Waldron provides a reminder and a
warning:

Conflict in belief is an endemic part of human society
and likely always will be. What has changed, I think, is the resurrection of
the idea that we can and should compel belief through legal and
administrative processes, or, if not compel the belief itself, at least
force conformity. Unfortunately, that begins the cycle of repression that,
if we are to maintain a democracy, we must break.74

V.5.03 On this point, it is essential to note that a secular ethic is not
morally neutral.75 The claim that a secular ethic is morally neutral - or that
one can practise medicine in a morally "neutral" fashion- is not merely
fiction. It is, as Professor Jay Budziszewski says, "bad faith
authoritarianism . . . a dishonest way of advancing a moral view by
pretending to have no moral view."76

V.5.04 One of the most common examples of "bad faith authoritarianism" is
the pretence that referral is an acceptable compromise that balances the
respective "interests" of physicians and patients. While that may be the
case for many physicians in many situations, it clearly is not the case when
it is understood that referral or other forms of facilitation make a
physician complicit in wrongdoing.77

V.6.01 If it is legitimate to compel religious believers to do what they
believe to be wrong, then it is equally legitimate to compel non-religious
believers to do what they think is wrong. It would, in principle, establish
a duty to do what is believed to be wrong for everyone.

V.6.02 For Andrei Marmor, "a duty to do what is wrong is surely an
oxymoron,"78 and most people would agree, as did Dr. John Williams, then
Director of Ethics for the Canadian Medical Association. Speaking in 2002 of
physicians who decline to provide or refer for contraceptives for religious
reasons, he said, "[They're] under no obligation to do something that they
feel is wrong."79

V.6.03 When discussion about difficulties associated with the exercise of
freedom of conscience in health care is repeatedly characterized as "the
problem of conscientious objection,"80 it becomes clear that the underlying
premise is that people and institutions ought to do what they believe to be
wrong, and that refusal to do what one believes to be wrong requires special
justification. This is exactly the opposite of what one would expect. Most
people believe that we should not do what we believe to be wrong, and that
refusing to do what we believe to be wrong is the norm. It is wrongdoing
that needs special justification or excuse, not refusing to do wrong.

V.6.04 The inversion is troubling, since "a duty to do what is wrong" is
being advanced by those who support the "war on terror." They argue that
there is, indeed, a duty to do what is wrong, and that this includes a duty
to kill non-combatants and to torture terrorist suspects.81 The claim is
sharply contested,82 but it does indicate how far a duty to do what is wrong
might be pushed. In Quebec, it is now being pushed as far as requiring
physicians to participate in killing patients, even if they believe it is
wrong: even if they believe that it is first degree murder.83

V.6.05 The difficult compromise described in
I.2 safeguards the
legitimate autonomy of the patient and preserves the integrity of the
physician, but it also protects the community against the temptation to give
credence to a dangerous idea: that a learned or privileged class, a
profession or state institutions can legitimately compel people to do what
they believe to be wrong - even gravely wrong - and punish them if they
refuse.

V.6.06 This, perhaps, was what was troubling a member of the Council of
the College of Physicians of Ontario when, in September, 2008, the Council
was considering the final draft of Physicians and the Human Rights Code. He
drew his colleagues' attention to a chilling New England Journal of Medicine
article by Holocaust survivor, Elie Wiesel: Without conscience.84 It
was about the crucial role played by German physicians in supporting Nazi
horrors. "How can we explain their betrayal?" Wiesel asked. "What gagged
their conscience? What happened to their humanity?"85

V.6.07 Finally, it would be incoherent to include a duty to do what one
believes to be wrong in a code of ethics or ethical guidelines, the very
purpose of which is to encourage physicians to act ethically and avoid
wrongdoing.

V.7.01 The OHRC justified its intention to suppress freedom of conscience
and religion in the medical profession by quoting a statement of the Supreme
Court of Canada: "the freedom to hold beliefs is broader than the freedom to
act on them."86

V.7.02 The statement is certainly correct, and has a pedigree consistent
with the OHRC's intentions; Oliver Cromwell applied the distinction to
justify his suppression of the practice of Catholicism in Ireland.87 However,
it is doubtful that the Supreme Court of Canada intended its comment to be
put to such use in a liberal democracy.

V.7.03 The mantra, "the freedom to hold beliefs is broader than the
freedom to act on them" is not wrong, but it is inadequate. It is simply not
responsive to many of the questions about the exercise of freedom of
conscience that arise in a society characterized by a plurality of moral and
political viewpoints and conflicting demands. More refined distinctions are
required. One of them is the distinction between perfective and preservative
freedom of conscience, which reflects the two ways in which freedom of
conscience is exercised: by pursuing apparent goods and avoiding apparent
evils.88

V.7.04 It is generally agreed that the state may limit the exercise of
perfective freedom of conscience if it is objectively harmful, or if the
limitation serves the common good. Although there may be disagreement about
how to apply these principles, and restrictions may go too far, no polity
could long exist without restrictions of some sort on human acts, so some
limitation of perfective freedom of conscience is not unexpected.

V.7.05 If the state can legitimately limit perfective freedom of
conscience by preventing
people from doing what they believe to be good, it
does not follow that it is equally free to suppress preservative freedom of
conscience by forcing them to do what they believe to be wrong. There is a
significant difference between preventing someone from doing the good that
he wishes to do and forcing him to do the evil that he abhors.

V.7.06 We have noted the danger inherent in the notion of a "duty to do
what is wrong." Here we add that, as a general rule, it is fundamentally
unjust and offensive to suppress preservative freedom of conscience by
forcing people to support, facilitate or participate in what they perceive
to be wrongful acts; the more serious the wrongdoing, the graver the
injustice and offence. It is a policy fundamentally opposed to civic
friendship, which grounds and sustains political community and provides the
strongest motive for justice. It is inconsistent with the best traditions
and aspirations of liberal democracy, since it instills attitudes more
suited to totalitarian regimes than to the demands of responsible freedom.

V.7.07 This does not mean that no limit can ever be placed on
preservative freedom of conscience. It does mean, however, that even the
strict approach taken to limiting other fundamental rights and freedoms is
not sufficiently refined to be safely applied to limit freedom of conscience
in its preservative form. Like the use of potentially deadly force, if the
restriction of preservative freedom of conscience can be justified at all,
it will only be as a last resort and only in the most exceptional
circumstances.

VI.1.01 In a statement obviously intended to encourage respect and
deference, the policy acknowledges that "[p]ersonal beliefs and values and
cultural and religious practices are central to the lives of physicians and
patients."89

VI.1.02 The grouping might be understood as implying that beliefs,
values, and cultural and religious practices are all more or less the same
sort of thing. They are not, although they may be closely related and even
intertwined. The focus of POHRC is belief: more specifically, moral or
religious beliefs that motivate conduct. Nonetheless, the encouragement of
an attitude of respect and deference encompassing a broader range of human
goods is welcome.

VI.1.03 Respect for religious belief or freedom of religion must include
more than respect for "religious practices," the term used in the text.
While religious belief is expressed in specifically religious practices,
like fasting during Ramadan or praying, it is also frequently expressed by
adherence to a religiously informed moral code. Moreover, in a number of
religious traditions, conduct motivated by religious belief is considered of
equal or greater significance than religious practices.

POHRC should avoid language that could be taken to mean that
"freedom of religion" means only "freedom of worship" or the freedom to
indulge in specifically religious practices.

POHRC should explicitly affirm that freedom of conscience and
religion includes the freedom to act upon moral or religious
convictions.

VI.1.04 The opening sentence under the heading "moral or religious
beliefs" states:

If physicians have moral or religious beliefs which
affect or may affect the provision of medical services, the College advises
physicians to proceed cautiously . . . (emphasis added)90

VI.1.05 The reason for this advice is given later. Physicians who
"restrict medical services offered" or "end physician-patient relationships"
for reasons "based on physicians' moral or religious beliefs" may be
prosecuted by the Ontario Human Rights Commission (OHRC) for violations of
the Human Rights Code.91

VI.1.06 The first sentence of this section implies that it is unusual for
physicians to be influenced by moral or religious beliefs in providing
medical services: that, as a rule, the practice of medicine is a morally
neutral enterprise. This is not only untrue; it is impossible. Every
decision with respect to the provision of medical services and every
decision to end a physician-patient relationship engages moral or religious
beliefs, if only implicitly (V.1,
V.3,
V.4). To provide or refer for
abortion, contraception or euthanasia involves moral judgement, just as
refusing to do so involves moral judgement. The assertion that one decision
is morally neutral and the other is morally charged is an example of "bad
faith authoritarianism." (V.5)

VI.1.07 The warning that physicians should proceed cautiously if their
decisions are influenced by moral or religious beliefs, while understandable
in view of the aggressive tendencies of the OHRC, suggests that the exercise
moral judgement by physicians is barely tolerable, when, in fact, it is an
inescapable aspect of human life, including the practice of medicine (V.1,
V.3,
V.4).

VI.1.08 POHRC is specifically concerned with restricting or refusing to
provide or facilitate services primarily for reasons of conscience or
religion. Such decisions are always motivated by a desire to avoid
complicity in wrongdoing. The implication of the warning to "proceed
cautiously" and reference to the threat posed by the OHRC implies that
refusal to do what one believes to be wrong needs to be defended, and may
even be indefensible. This is a perversion of fundamental moral and ethical
principles. (V.6)

POHRC should avoid language that suggests that medical
decision-making is morally neutral.

POHRC should avoid language that implies that only religious
believers bring their beliefs to bear in medical decision-making.

POHRC should avoid language that suggests that people may be obliged
to do what they believe to be wrong.

POHRC should convey the message that the practice of medicine always
entails the exercise of moral or ethical judgement, which may or may not
be informed by religious belief.

VI.2.01 Physicians who decline to do something they believe to be wrong
are concerned to avoid complicity in wrongdoing, not with the personal
characteristics, status or inclinations of a patient.

VI.2.02 For example, a physician who believes that sexual intercourse
outside marriage is immoral may decline to prescribe oral contraception for
an unmarried patient because he does not want to become complicit in
extra-marital sexual activity. The marital status of the patient is relevant
to his moral reasoning, but it is complicity in conduct that concerns him,
not marital status.92 The same physician might have no objection to
prescribing an oral contraceptive for an unmarried patient in order to treat
a disorder of some kind.

VI.2.03 POHRC admits that "the College does not have the expertise or the
authority to make complex, new determinations of human rights law,"93 and
prefaces its guidance with a warning:

The law in this area is unclear,
and. . . the College is unable to advise physicians how the Commission,
Tribunal or Courts will decide cases where they must balance the rights of
physicians with those of their patients.94

VI.2.04 Nonetheless, POHRC states that "compliance with the [Human
Rights] Code is one factor the College will consider" when adjudicating
complaints of professional misconduct.95

VI.2.05 Having admitted that the College lacks expertise in human rights
law, that the law is unclear, and that the College cannot anticipate how
commissions, tribunals and courts will rule in cases involving rights
conflicts between physicians and patients, prudence suggests that compliance
with the Code should not be a factor in the College's assessment
of a case except in the very clearest of cases.

VI.2.06 Complaints involving physicians who have declined to do something
for reasons of conscience or religion are not the clearest of cases. The
profound and complex issues involved and the far-reaching consequences of
decisions in such cases afford the College good reason to confine its review
to issues clearly within its competence.

In adjudicating allegations of professional misconduct, the College
should confine itself to matters within its competence, leaving the
investigation of alleged violations of the Human Rights Code to the
OHRC.

POHRC should be revised to reflect this change. Nonetheless,
it might warn physicians that an allegation of professional misconduct
might lead to an investigation by the OHRC.

VI.2.07 "No hierarchy of rights": According to
Physicians and the Ontario Human Rights Code, "there is no hierarchy of
rights in the Charter; freedom of religion and conscience, and equality
rights are of equal importance."96

VI.2.08 In the relevant passage in the judgement cited to support the
statement, the Court addressed arguments that "religions whose beliefs
preclude the recognition of same-sex marriage could find themselves required
to participate in such marriages, or be discriminated against because of
their beliefs." The Court, however, did not think the concern was valid,
because "there is no hierarchical list of rights in the Charter, and freedom
of religion and conscience must live together with s. 15 equality rights."

One cannot trump the other. . . the equality rights of
same-sex couples do not displace the rights of religious groups to refuse to
solemnize same-sex marriages which do not accord with their religious
beliefs. Similarly, the rights of religious groups to freely practise their
religion cannot oust the rights of same-sex couples seeking equality, by
insisting on maintaining the barriers in the way of that equality.97

VI.2.09 The Court was considering an argument in the form of a
hypothetical scenario: religious believers confronted by an equality rights
claim made in order to force them to provide a service they believed to be
wrong. That is, the equality rights claim was in conflict with preservative
freedom of conscience or religion (V.7), although the distinction was not
recognized. The scenario is analogous to that of a physician confronted by
the OHRC asserting that equality rights trump freedom of conscience.

VI.2.10 The Court held that, in the scenario presented, the consequence
was a draw. Note, in particular, that the court did not see the refusal of
the religious believers as a "barrier." The "barriers" in question were
marriage laws, which the plaintiffs were challenging. By analogy, the
refusal of a physician to do what he believes to be wrong should not be
construed as a "barrier"; "barriers," if they exist, are things of another
kind: the unavailability of alternative methods of access, for example.

POHRC should make clear that the College does not construe a refusal
to provide or participate in a procedure or service for reasons of
conscience as a "barrier" or "obstacle" to services;

POHRC should make clear that, since there is no judicially
recognized rational ordering of fundamental rights and freedoms, the
College will not use rights claims to suppress them, but will try to
resolve the conflict by accommodation.

VI.2.11 No
'interference': Physicians and the Ontario Human Rights
Code asserts that the "[f]reedom to exercise genuine religious belief does
not include the right to interfere with the rights of others."98

VI.2.12 The single sentence in the case to which this statement refers
appears a part of the judgement that discusses the failure of the BC College
of Teachers to balance religious freedom against other freedoms.

Students attending [Trinity Western University] are
free to adopt personal rules of conduct based on their religious beliefs
provided they do not interfere with the rights of others. Their freedom of
religion is not accommodated if the consequence of its exercise is the
denial of the right of full participation in society.99

VI.2.13 To construe a refusal to participate in wrongdoing as
"interference" would be inconsistent with the view expressed two years later
by the Supreme Court of Canada in Barbeau (VI.2.09).

VI.2.14 The word "genuine" does not appear in the judgement cited to
support this statement,100 and it is not clear what purpose the word serves in
POHRC. Unfortunately, it could be understood to convey an attitude
prejudiced against or suspicious of religious belief, and could
inadvertently encourage anti-religious sentiment exemplified by the crusade
against the Ottawa physicians.

VI.2.15 Whatever significance one attaches to "genuine," it is erroneous
to apply this statement only to religious beliefs, and could leave the
impression of an intention to privilege non-religious beliefs and
discriminate against religious beliefs. Such an impression would be
inconsistent with the view of the Supreme Court of Canada in Chamberlain
(V.4) and would tend to foster prejudice against religious believers.

VI.2.16 The substantive meaning of POHRC's assertion turns in the first
place, upon the validity of the rights claims asserted. In Quebec, for
example, the Act Respecting End of Life Care (ARELC) claims that a patient
has a right to euthanasia. Quite apart from constitutional issues, like many
of the rights claims made with respect to demands made upon physicians, this
claim is disputed on moral and ethical grounds.

VI.2.17 The question in the present context is whether or not a
physician's refusal to participate in what he believes to be wrong
constitutes "interference" with a patient's "rights." However, leaving aside
the validity of the rights claim and Barbeau (VI.2.09), the demand by a
patient that a physician do what he believes to be wrong can also be
characterized as "interference" with the physician's "rights." It can even
be said to have a "detrimental impact" (a consideration in the judgement) on
the delivery of health care, since it can hardly be maintained that medical
ethics will be vastly improved if the only physicians permitted to practice
are those willing to do what they believe to be wrong.

VI.2.18 More important, to characterize a refusal to do what one believes
to be wrong as an "interference" with the rights of another would
necessarily imply the incoherent conclusion that physicians have an ethical
duty to do what they believe to be wrong (V.6).

POHRC should make clear that the College does not consider a refusal
to provide or participate in a procedure or service for reasons of
conscience to constitute "interference" with the rights of others.

VI.2.19 Limits
to freedom: According to Physicians and the Ontario Human
Rights Code, "the right to freedom of religion is not unlimited; it is
subject to such limitations as are necessary to protect public safety,
order, health, morals or the fundamental rights or freedoms of others."101

VI.2.20 This statement, taken from a well-known ruling by the Supreme
Court of Canada, is offered by POHRC as a principle supporting the
limitation of religious freedom. In the cited case, the Court struck down
the Lord's Day Act because its "acknowledged purpose" was "the compulsion of
religious observance" and employed "a form of coercion inimical to the
spirit of the Charter," thus offending its guarantee of freedom of religion
and conscience.102

VI.2.21 The part of the judgement from which the wording of POHRC is
drawn deserves to be quoted at somewhat greater length:

A free society is one which aims at equality with
respect to the enjoyment of fundamental freedoms, and I say this without any
reliance upon s. 15 of the Charter. Freedom must surely be founded in
respect for the inherent dignity and the inviolable rights of the human
person. . . .

. . . .One of the major purposes of the Charter is to
protect, within reason, from compulsion or restraint. Coercion includes not
only such blatant forms of compulsion as direct commands to act or refrain
from acting on pain of sanction, coercion includes indirect forms of control
which determine or limit alternative courses of conduct available to others.
Freedom in a broad sense embraces both the absence of coercion and
constraint, and the right to manifest beliefs and practices. Freedom means
that, subject to such limitations as are necessary to protect public safety,
order, health, or morals or the fundamental rights and freedoms of others,
no one is to be forced to act in a way contrary to his beliefs or his
conscience.103

VI.2.22 In other words, the case quoted by POHRC to justify the
limitation of religious freedom was actually about the importance of
religious freedom and the need to protect religious minorities "from the
threat of 'the tyranny of the majority'" - arguably represented, in this
case, by the Facebook crusade against the three Ottawa physicians.

VI.2.23 Moreover, in referring to circumstances that would justify the
limitation of freedoms, the Court was speaking in general terms, making no
distinction between the exercise of perfective and preservative freedom of
conscience (V.7).

VI.2.24 The preceding discussion indicates that the
exercise of preservative freedom of conscience cannot be construed as a
threat to the fundamental rights and freedoms of others. The case cited by
POHRC indicates that, if the College intends to force a physician "to act in
a way contrary to his beliefs or conscience" by compelling him to do what he
believes to be wrong, the onus is on the College to demonstrate that the
refusal of a physician to do what he believes to be wrong is unsafe,
disorderly, unhealthy, or immoral.

POHRC should make clear that the College will not force a physician
to participate in procedures or services to which he objects for reasons
of conscience unless it can demonstrate104 that his refusal is unsafe,
disorderly, unhealthy, or immoral.

VI.2.25 Context:Physicians and the Ontario Human Rights Code states that "balancing of
rights must be done in context," and that "courts will consider how directly
the act in question interferes with a core religious belief." Further:

[c]ourts will seek to determine whether the act
interferes with the religious belief in a 'manner that is more than trivial
or insubstantial.' The more indirect the impact on a religious belief, the
more likely courts are to find that the freedom of religion should be
limited.105

VI.2.26 Contrary to the impression created by POHRC, neither of the cases
cited to support these statements refers to - let alone distinguishes
between - direct and indirect impacts on religious belief. Neither of the
cases cited uses the term "core" religious belief.

VI.2.27 In Ross v. School District No. 15 the Supreme Court of Canada
considered the case of a teacher who, when not working, was locally
notorious for his virulently anti-semitic public statements and writings
that were reasonably perceived to have poisoned the school environment
against Jewish students.106 The Court in
Ross was not asked to consider the
limitation of what is here called preservative freedom of conscience or
religion, and the facts in Ross bear no resemblance to circumstances in
which a physician refuses to do what he believes to be wrong.

VI.2.28 Concerning the nature of religious belief, the principal value of
Syndicat Northcrest v. Amselem is found in the Supreme Court's affirmation
that neither the state nor its courts are qualified to "to interpret and
determine the content of a subjective understanding of a religious
requirement." It is open to the court only "to inquire into the sincerity of
a claimant's belief, where sincerity is in fact at issue."107

VI.2.29 "Trivial or insubstantial":Syndicat Northcrest
resulted in a split 5-4 decision. Five judges found that infringement of
rights had occurred and that it was not trivial or insubstantial; three
ruled there was no infringement, except with respect to one of the
appellants, which they found to be legitimate; one held that an infringement
had occurred but was justifiable in view of the rights of others. The
differing views of the judges and a ruling by the bare majority demonstrates
the unpredictable nature of "rights-balancing" exercises that depend,
ultimately, on an adjudicator's subjective views about the relative
importance of religious belief and other social concerns.

VI.2.30 As Syndicat Northcrest demonstrates, the introduction of the
terms "trivial" and "insubstantial" is meaningless in the absence of any
ordering principle or standard by which something can be judged to be
trivial or insubstantial, so the terminology does not shed any additional
light on the problem of balancing conflicting rights and freedoms.

VI.2.31 However, the reasoning leading to the distinction between
preservative and perfective freedom of conscience is helpful because it
provides a rational basis for the assertion that a violation of preservative
freedom of conscience or religion - such as forcing a physician to do what
he believes to be wrong - is never trivial or insubstantial (V.7).

POHRC should avoid language that suggests that the College or other
state institutions can decide what constitutes a "core" religious
belief.

POHRC should acknowledge that forcing physicians to do what they
believe to be wrong is never a trivial or insubstantial matter.

VI.3.01
Disclosure: The requirement that physicians communicate
clearly and promptly to patients what treatments or procedures they will not
provide because of moral or religious beliefs is sensible. Concerning notice
to patients, it is common ground that conflicts should be avoided,
especially in circumstances of elevated tension, and that they often can be
avoided by timely notification of patients, erring on the side of sooner
rather than later.108

VI.3.02 Questions sometime arise about when such notice should be given.
Fernandez-Lynch insists that physicians fully disclose their objections to
patients when they first accept them, reiterate them if they become relevant
to treatment options, and notify patients if their views change.109

VI.3.03 However, inflexible notification protocols do not serve the
interests of either patients or physicians. For example: it would probably
be unnecessary for a physician who accepts a 55 year old single woman as a
patient to begin their professional relationship by disclosing objections to
abortion, and it could well be unsettling for the patient if her medical
history includes abortion. And, while it is possible that the woman might,
six months after being accepted as a patient, ask for an embryo transplant,
it does not follow that the mere possibility of such a request imposes a
duty on the physician to disclose moral objections to artificial
reproduction at their first consultation.

VI.3.04 Interests of patients and physicians are better served by open
and continuing communication. On the part of the physician, this involves a
special responsibility to be attentive to the spoken and unspoken language
of the patient, and to respond in a caring and truthful manner.

If the College believes POHRC should provide more detail about the
expectation of disclosure, it might add that a physician should disclose
his position when it would be apparent to a reasonable and prudent
physician that a conflict is likely to arise concerning treatments or
services he declines to provide. In many cases - but not all - this may,
indeed, be when a patient is accepted. The same holds true for
notification of patients when a physician's views change significantly.

V.3.05
Providing information:Physicians and the Ontario Human
Rights Code states that physicians must provide information and advice to
patients about all available procedures, even if they conflict with their
moral or religious beliefs. The expectation presumes either that the mere
giving of information or advice has no moral significance, or, if it does,
that it is inconsequential. This is not necessarily the case.

V.3.06 This is demonstrated by the policies of the AMA on physician
participation in execution and torture. The AMA prohibits physicians from
rendering technical advice or consulting with executioners110 or "providing . .
.knowledge to facilitate the practice of torture."111 It is also
demonstrated by the policy of the College of Physicians and Surgeons of
British Columbia, which forbids disclosure to the parents of the sex of a
child in utero.112 Finally, in 2002, the General Medical Council in the United
Kingdom suspended the license of a physician for six months because he had
provided information about live donor organ transplantation to undercover
reporters and had thus encouraged the trade in human organs, even though he
had not actually participated in the trade.113

V.3.07 The difficulty here is to balance the desire of a physician to
avoid complicity in a wrongful act with the importance of informed
decision-making by the patient, which requires that the patient have all of
the information relevant for the purpose of choosing a course of treatment.
It is necessary to respect both the freedom of conscience of the physician
and the freedom and right of the patient to make a fully informed choice.

V.3.08 One satisfactory compromise would see the physician explain all
legal options, including those he finds morally objectionable, and disclose
the fact and reasons for his objections. In this way, the patient obtains
the information he requires to make a fully informed choice, but the
physician has not compromised his own integrity by appearing to recommend a
procedure that he considers morally objectionable. In such circumstances it
is important for the physician to convey his position in a manner that does
not provoke justifiable concern about "preaching" or attempting to "convert"
the patient to his opinion.

V.3.09 Note that the legalization of euthanasia and assisted suicide may
make it difficult to maintain this compromise. Many physicians who object to
euthanasia and assisted suicide for reasons of conscience believe that even
to suggest the possibility of euthanasia or suicide to a vulnerable patient
is abusive and harmful, particularly if the suggestion comes from a
physician or other people in positions of authority or intimacy.

VI.3.10
Treating with respect:: The expectation that a physician
treat patients with respect includes the caution that physicians must "not
express personal judgements about the beliefs, lifestyle, identity or
characteristics of a patient."114

VI.3.11 This could be understood to preclude even discussion about smoking,
the need for a change of diet or an increase in exercise. Health and
lifestyle are usually related.

VI.3.12 As amply illustrated by the crusade against the Ottawa physicians,
physicians who comply with the requirement to disclose treatments or
procedures they will not provide because of moral or religious beliefs may
be accused of being "judgemental."

The expectation should be clarified to ensure that it does not
inadvertently restrict physician-patient communication about health
issues.

The expectation should be clarified to ensure that a physician will
not be considered to have passed a personal judgement on a patient
simply because he has complied with ethical guidelines that require him
to disclose views that may influence his recommendations for treatment.

VVI.3.13 Physicians who comply with the ethical requirement to disclose
moral or religious views that may influence medical decision making may
sometimes have to provide further information about their reasoning to make
themselves understood and to avoid giving offence to a patient.
Unfortunately, this can be misconstrued as a form of preaching or
evangelization.

POHCR should make clear that physicians will not be considered to be
promoting their own religious beliefs or seeking to convert patients
simply because they have complied with ethical guidelines that require
him to disclose views that may influence his recommendations for
treatment.

VI.3.14 Help to find a physician: Physicians who refuse
to provide some treatments or services for reasons of conscience or religion
will not normally have any difficulty in meeting the first three
expectations of the College, but the fourth expectation ends on a
potentially problematic note. Physicians and the Ontario Human Rights Code
states:

Advise patients or individuals who wish to become
patients that they can see another physician with whom they can discuss
their situation and in some circumstances, help the patient or individual to
make arrangements to do so.115

VI.3.15 The expectation that objecting physicians will advise the
patients that they can see another physician is unremarkable. That has been
at least an implied expectation for decades (I.2.02). The additional
requirement to help the patient find another physician could be problematic,
depending upon how it is interpreted.

VI.3.16 If 'helping' means simply directing the patient to the yellow
pages or College of Physicians or local lists of clinics, it is unlikely to
be contentious. The Project's experience has been that objecting physicians
are willing to do that.

VI.3.17 If, however, the requirement is understood to mean that the
physician must help the patient find someone to provide the morally
contested service by referral or some other means, that would be highly
objectionable to physicians who believe that, by doing so, they would be
morally culpable for what followed. Ironically, the issue was concisely and
accurately stated by Dr. Charles Bernardin, the President of the Collège des
Médecins du Québec. Speaking at a legislative committee hearing into what
later became Quebec's euthanasia law, Dr. Bernardin explained:

[I]f you have a conscientious objection and it is you
who must undertake to find someone who will do it, at this time, your
conscientious objection is [nullified]. It is as if you did it anyway. /
[Original French] Parce que, si on a une objection de conscience puis c'est
nous qui doive faire la démarche pour trouver la personne qui va le faire, à
ce moment-là, notre objection de conscience ne s'applique plus.
C'est comme si on le faisait quand même.116

VI.3.18 The admission was ironic because, as previously noted, (I.5.02,
I.6.02) Quebec is the only province in which the physician regulator demands
that objecting physicians assist patients to obtain morally contested
procedures. Here, Quebec's chief physician regulator admitted that this
policy nullifies freedom of conscience.

VI.3.19 More interesting yet, it is obvious from his testimony that this
made him uneasy. Thus, Dr. Bernardin was pleased with the provision in the
euthanasia law that allows a physician who refuses to kill a patient for
reasons of conscience to notify a designated health systems administrator,
who assumes responsibility for finding a physician who will. Dr. Bernard
felt that solved the problem of complicity, at least for the objecting
physician. Concerning this arrangement, he said, "We like it a lot."117

VI.3.20 Dr. Bernardin liked it because it sidestepped the problem he
anticipated if the Collège des Médecins du Québec tried to apply the
mandatory referral policy by forcing unwilling physicians to find someone
willing to kill their patients. His discomfort about the anticipated problem
and his relief that the euthanasia law might allow the Collège to sidestep
it reflected his intuitive awareness that the policy is mistaken.

VI.3.21 As a general rule, it is fundamentally unjust and offensive to
human dignity to require people to support, facilitate or participate in
what they perceive to be wrongful acts; the more serious the wrongdoing, the
graver the injustice and offence (V.6,
V.7). It is thus a serious error to
include such a requirement in a code of ethics. Collège representatives were
aware of this because, in the words of Project advisor Jay Budziszewski,
this is one of those things we can't not know, though we may not know them
"with unfailing perfect clarity" or have worked out "their remotest
applications."118

VI.3.22 An absence of clarity or sufficient reflection may explain why
this error was not apparent to Collège des Médecins du Québec
representatives with respect to contraception and abortion, but it became
intuitively obvious to them when the subject shifted from facilitating
access to birth control to facilitating the killing of patients.119

VI.3.23 The fundamental moral and ethical principle that there can be no
duty to do what one believes to be wrong is recognized in practice in the
CMA policy on referral for abortion, and it was clearly the basis for the
statement of the Ontario Medical Association in its response to the first
draft of Physicians and the Ontario Human Rights Code: "We believe that it
should never be professional misconduct for an Ontarian physician to act in
accordance with his or her religious or moral beliefs."120

VI.3.24 And the moral or religious beliefs of many objecting physicians
includes the conviction that if they help a patient to obtain a morally
contested procedure, they are morally complicit in wrongdoing. Speaking to
this issue, Dr. John R. Williams, a former CMA Director of Ethics and now
Director of Ethics for the World Medical Association,121 said "[Physicians are]
under no obligation to do something that they feel is wrong."122

VI.3.25 The expectation of the College is that an objecting physician
will help a patient "in some circumstances" to arrange to see another
physician. Under what circumstances would this be acceptable? Under what
circumstances would this expectation not, in Dr. Bernardin's words, nullify
freedom of conscience? Briefly, when the physician is satisfied that the
assistance he renders does not make him complicit in wrongdoing.

The expectation that objecting physicians will, in some
circumstances, help patients to find another physician should be
clarified by adding that the expectation must not be understood to imply
that the physicians have a duty to facilitate what they believe to be
wrong.

VVI.3.26 For some reason, Physicians and the Ontario Human Rights Code
does not follow relevant Canadian ethical guidance like the CMA policy on
Induced Abortion123 or the CMA approved
Joint Statement on Preventing and
Resolving Ethical Conflicts Involving Health Care Providers and Persons
Receiving Care.124 Instead, its expectations follow those in
Personal Beliefs
and Medical Practice, a policy document produced by Britain's General
Medical Council (GMC) in 2008.125 The GMC document was updated in 2013.126

VI.3.27 The sections of both the 2008 and 2013 versions of the British
document relevant to referral or facilitation have ignored evidence
concerning a euthanasia bill taken in 2004 and 2005 by a House of Lords
Select Committee, and the conclusions of the Committee. These were brought
to the attention of the GMC in a Project submission in 2013.127 The bill, in
its original form, included a requirement that objecting physicians refer
patients to another colleague for euthanasia. Numerous submissions protested
this provision because it made objecting physicians a moral party to the
procedure.128 The Joint Committee on Human Rights concluded that the demand was
probably a violation of the European Convention on Human Rights.129 The bill's
sponsor, Lord Joffe, accepted the finding, and removed the requirement for
referral. Indeed: he recognized the need to respect freedom of conscience
for "the whole medical team, including the nurses and social workers and
everybody involved."130

VI.3.28 Since the College elected to follow the GMC's Personal Beliefs
and Medical Practice in 2008, it may be the College's intention to follow
the 2013 version of the document. In the Project's view, this would be
ill-advised. Appendix "A" compares
the sections of the 2008 and 2013 document relevant to referral. It is clear
that the GMC is attempting to tighten the noose and force unwilling
physicians to facilitate services or procedures to which they object for
reasons of conscience. This creeping authoritarianism (V.5) imposes a duty
to do what is believed to be wrong (V.6) and is an attack on preservative
freedom of conscience (V.7).

VVI.3.29 It appears that the error is still not apparent to the GMC
because euthanasia is illegal in the United Kingdom, and prosecutorial
guidance precludes physician assisted suicide.131 Hence, unlike the Collège
des Médecins du Québec, the GMC has not yet had to consider
how unwilling physicians might respond if ordered to find someone to kill
their patients.

If POHRC is revised, it should not follow GMC guidance with respect
to referral or facilitation.

The CMA approved Joint Statement on Preventing and Resolving Ethical
Conflicts Involving Health Care Providers and Persons Receiving Care
appears to reflect a consensus and would be a better model to follow
than Personal Beliefs and Medical Practice.

VII.1.01 The College should avoid language or statements that could be
taken to mean that "freedom of religion" means only "freedom of worship" or
the freedom to indulge in specifically religious practices. It should
explicitly affirm that freedom of conscience and religion includes the
freedom to act upon beliefs, whether they are religious or non-religious.

VII.2.01 The College should avoid language or statements that suggest
that medical decision-making is morally neutral, or that imply that only
religious believers bring their beliefs to bear in medical decision-making.
It should convey the message that the practice of medicine always entails
the exercise of moral or ethical judgement, which may or may not be informed
by religious belief. It should affirm that physicians cannot be asked "check
their beliefs at the door" when practising medicine because that is not
merely unjust, but impossible.

VII.3.01 The College should acknowledge that forcing physicians to do
what they believe to be wrong is never a trivial or insubstantial matter. It
should not consider forcing physicians to participate in procedures or
services to which they object for reasons of conscience unless it can
demonstrate that their refusal is unsafe, disorderly, unhealthy, or immoral,
and that other remedies are unavailable.

VII.4.01 In adjudicating allegations of professional misconduct, the
College should confine itself to matters within its competence. It should
not attempt to rule upon what constitutes a valid religious belief or a
"core" religious belief, and it should leave the investigation of alleged
violations of the Human Rights Code to the OHRC.

VII.4.02 Since
there is no judicially recognized rational ordering of fundamental rights
and freedoms, the College should not use patient rights claims to suppress
the rights and freedoms of physicians, but should resolve conflicts between
patients and physicians by accommodating both.

VII.4.03 The College
should not construe a refusal to provide or participate in a procedure or
service for reasons of conscience as a "barrier" or "obstacle" to services,
nor a refusal to provide or participate in a procedure or service for
reasons of conscience to constitute "interference" with the rights of
others.

VII.8.01 The expectation that a physician will not express personal
judgements about patient lifestyles or characteristics should be clarified
to ensure

that it does not inadvertently restrict physician-patient
communication about health issues; and

that a physician will not be considered to have passed a personal
judgement on a patient simply because he has complied with ethical
guidelines that require him to disclose views that may influence his
recommendations for treatment;

that physicians will not be considered to be promoting their own
religious beliefs or seeking to convert patients simply because they
have complied with ethical guidelines that require him to disclose views
that may influence his recommendations for treatment.

VII.9.01 Interests of patients and physicians are better served by open
and continuing communication than rigid rules concerning notification and
disclosure. Physicians should notify patients of procedures or services they
decline to offer or recommend for reasons of conscience or religion when it
is reasonably apparent that a conflict is likely to arise in relation to
them. In many cases - but not all - this may, indeed, be when a patient is
accepted. The same holds true for notification of patients when a
physician’s views change significantly.

VII.11.01 Guidelines from the College should avoid the direction taken in
the General Medical Council’s 2013 edition of Personal Beliefs and Medical
Practice. The CMA approved Joint Statement on Preventing and Resolving
Ethical Conflicts Involving Health Care Providers and Persons Receiving Care
appears to reflect a consensus and is a better model to follow.

VIII.1 The College of Physicians and Surgeons periodically
receives complaints about physicians who have refused to provide a service
for reasons of conscience or religion, and has an obligation to respond to
such complaints. It is reasonable to ask what kind of response is best
suited to the problem. If the goal is to ensure access to services, that goal is best served by
connecting patients with physicians willing to help them. That would be a
more helpful and practical response than attempting to restrict or suppress
freedom of conscience and religion in the medical profession.